Soulless New World: Bush’s Military Commissions Act and the Future of America
By JENNIFER VAN BERGEN
“The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law.” Scott Horton, When Lawyers Are War Criminals
Before Congress recessed, it passed, amid much criticism, the Military Commissions Act (MCA). The Act has consequences for citizens and non-citizens alike. Among it’s worst features, it authorizes the President to detain, without charges, anyone whom he deems an unlawful enemy combatant. This includes U.S. citizens. It eliminates habeas corpus review for aliens. It also makes providing “material support” to terrorists punishable by military commission. And, once again, the military commissions procedures allow for coerced testimony, the use of “sanitized classified information” (where the source is not disclosed), and trial for offenses not historically subject to trial by military commissions. (Terrorism is not historically a military offense; it’s a crime.) Finally, by amending the War Crimes Act, it allows the president to authorize interrogation techniques that may nonetheless violate the Geneva Conventions and provides future and retroactive immunity for those who engage in or authorize those acts.
Given the troubling new broad powers Congress has given the President, what will happen now?
While the President has consistently insisted these laws are necessary, it is becoming increasingly clear that, in addition to a huge up-swelling of anti-American sentiment in the Middle East, the administration’s approach to terrorism has led to a tremendous number of false arrests and imprisonments. It is hard to imagine that the MCA will not lead to more and greater mistakes of law and judgment. Although the Act provides for trial by military commission, it is unlikely very many will even be tried. As Michael Ratner points out: “As detainees can now be held forever without trial, why try them?”
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